I had a very unpleasant surprise when I decided to test JBuilder 5 and Kylix 2 Open Edition. Both of these products were designed for the Linux operating system. After reading the license, I immediately aborted the install procedure. Both have license provisions which I feel are both invasive and ethically and morally reprehensible. To begin, I quote your own license:
12. AUDIT. During the term of this License and for one (1) year thereafter, upon reasonable notice and during normal business hours, Borland or its outside auditors will have the right to enter your premises and access your records and computer systems to verify that you have paid to Borland the correct amounts owed under this License and determine whether the Products are being used in accordance with the terms of this License. You will provide reasonable assistance to Borland in connection with this provision. You agree to pay the cost of the audit if any underpayments during the period covered by the audit amount to more than five percent (5%) of the fees actually owed for that period.
We are to grant you access to our work and materials for the purpose of verifying compliance with this license. In other words, we forfeit our right of privacy at our facilities or our homes -- a right which we are guaranteed under the Constitution -- simply to satisfy you that we are not cheating on a license. There will never be a circumstance under which I will allow Borland or any other greedy software company to invade my home without a warrant authorized by a court of law. In my opinion, you have no right to even ask for such a thing.
Besides privacy, another concern shared by many is the protection of intellectual rights and property. What guarantees do I have that your company or your auditing personnel will not exploit time spent accessing my systems to steal, compromise, or contaminate my data security, non-disclosure agreements, intellectual rights, or patents on software I may have in development? I would say: none. Even if you promised, how could you realistically enforce it? Once something has been viewed, you can't un-view it. Your license doesn't even specify which products on which computer systems you want to view. One or all? Windows, OS/2, AS/400, or Linux? Private citizens, students, nor any company ever commissioned have any intentions of allowing a single vendor complete access to an entire network/system for one piece of software, either working in the public interest on GNU software or in the private sector. Anyone I know would not use that vendor's products rather than agree to such a compromise of security.
Also, in the same license, you require us to waive our right to settle any dispute in jury fashion, and to give up our rights to class actions. Again, I quote from your license:
14.4 No Jury Trials; No Joinder. Each party hereby irrevocably waives its right to a jury trial in any legal action, suit or proceeding between the parties arising out of or relating to this License. A copy this License may be filed with the court as written consent by both parties to a bench trial. You agree that any dispute you may have against Borland cannot be joined with any dispute of any other person or entity in a lawsuit, arbitration or any other proceeding, or resolved on a classwide basis.
If a number of people decide that your license is unlawful, they cannot collectively seek remedy. Are you afraid that a jury trial might be costly, and rule against you? Jury trials by definition are "trial by peers". A public trial results in many things, including bad public relations. Bench trials are commonly used when actions are to be kept confidential. I strongly question your motives on this point, especially considering Provision 12.
First, we must forfeit our right to privacy, then we must give up our traditional protections and right to resolve grievances under the law. I believe you are asking too much from programmers and other users who have looked to your company for years to provide quality development software on many platforms. In creating this license, I feel you have betrayed the trust you have engendered over the past years. Where you once created "no nonsense" licenses that made me proud to be a Borland customer, you have now created a license that I must publicly protest, to inform the public community of this travesty. To do this in good conscience, I have taken the following steps:
I use C++ Builder 3 Professional as my preferred development platform for Windows, for example. If this software is retroactively licensed in this manner, I will seek a new platform.
This matter has weighed heavily in my decision to purchase new Borland software. I will be frank: I never purchase or use any software with this license, or any with similar provisions from any vendor, period. I want to remain a Borland customer, so I do hope this matter can be resolved quickly and amicably.
T.J. only mentions a couple of the problematic sections of the license; you can view a copy of it here. It has all the usual bizarre clauses of a closed-source use-it-on-one-machine you-buy-it-but-don't-own-it license, made more jarring by references to the GPL.
The most disturbing part is that, while there are sections that only apply to certain editions, most of the license applies to all of them, including Kylix Open Edition. While it's an interesting idea to release an "Open Edition" that can only be used to create GPLed software, they're going about it in a very confusing way. Here's what I can gather:
It's free as in beer, but not as in reasonable search and seizure.
I imagine these clauses were only meant to apply to the Professional and Enterprise versions (not that that excuses them), but, well, there they are.
BTW, we mirrored a copy of the license ourselves because this is what you have to do to get one:
Personally, I think that's indicative of a certain need for clue of which the license is probably only one of many examples.]